Thirty-ninth Report of Session 2012-13 - European Scrutiny Committee Contents

9   Entry and residence of third country nationals



COM(13) 151

+ ADDs 1-2

Draft Directive on the conditions of entry and residence of third country nationals for the purposes of research, studies, pupil exchanges, remunerated and unremunerated training, voluntary service and au pairing

Commission staff working documents: Impact assessments

Legal baseArticle 79(2) (a) and (b) TFEU; co-decision; QMV
Document originated 25 March 2013
Deposited in Parliament 26 March 2013
DepartmentHome Office
Basis of considerationEM of 9 April 2013
Previous Committee ReportNone
Discussion in CouncilNo date set
Committee's assessmentPolitically important
Committee's decisionNot cleared; further information requested


9.1  Two Directives adopted in 2004 and 2005 establish common rules on the entry and residence of third country (non-EU) nationals to purse a full-time course of study at a higher educational establishment or to carry out post-graduate research at an approved research organisation within the European Union.[24] Both are intended to promote Europe as a centre of excellence for academic study and research. Prospective students or researchers must be able to demonstrate that they have sickness insurance and sufficient means to cover their living and return travel costs without recourse to social assistance in the host Member State. Once admitted, students and researchers are entitled to work or teach (although the host Member State may limit the maximum number of working or teaching hours), and researchers enjoy a more extensive range of rights intended to secure equal treatment with EU nationals on such matters as the recognition of qualifications, working conditions, and access to goods and services. Both Directives include limited provision for students and researchers to continue their studies or research in a second Member State.

9.2  The Directives are based on provisions of the EC Treaty (now contained in Article 79(2) of the Treaty on the Functioning of the European Union) which give the EU competence to develop a common immigration policy, including determining the conditions of entry and residence for third country nationals and the rights of those legally resident in a Member State. These provisions are subject to the UK's justice and home affairs opt-in. The UK did not take part in the adoption of the Directives and is not bound by them.

9.3  The Commission considers that there are significant weaknesses in the operation of the Directives. In particular, it notes that the option given to Member States to extend the application of the 2004 Directive on students to pupil exchange schemes, unremunerated trainees and volunteers has resulted in a fragmented legal framework, as ten Member States have chosen to apply the rules to all three groups, five apply the rules to one or two of the three optional groups, and the remaining Member States have maintained their own national rules. Other concerns highlighted by the Commission include:

  • delays in issuing visas or residence permits to students or researchers who meet the conditions for admission set out in the Directives;
  • lack of clarity regarding the practical application of the rules, for example, the type of evidence needed to demonstrate that a student has adequate means of subsistence for the duration of his or her course of study;
  • difficulties in implementing the provisions on mobility between Member States;
  • absence of time limits for deciding applications for admission as a student or researcher;
  • excessive limitations on the ability of students to work;
  • absence of common rules entitling students or researchers to remain for a temporary period after completion of their studies or research projects in order to seek employment; and
  • lack of provision for family members accompanying researchers to seek employment in the host Member State.

9.4  In addition, the Commission considers that the scope of the Directives is too narrow. Neither includes provisions on remunerated trainees or on au pairs even though both are often used to bridge the gap between education and the labour market and may be vulnerable to exploitation.

The draft Directive

9.5  The Commission has proposed a "recast" Directive which would repeal and replace the existing Directives, extend their scope to remunerated trainees and au pairs, and bring together within a single instrument all of the provisions governing entry and residence. It believes that a more comprehensive set of common rules is needed to attract talent to the EU, boost the competitiveness of the European economy through research and innovation, foster the transfer of skills and the development of human capital and cultural exchanges whilst also ensuring fair treatment for those third country nationals admitted to the EU.

9.6  The draft Directive is intended to establish a more coherent legal framework for third country nationals admitted for the purposes of study, research, training, voluntary service or au pair work. The conditions for the admission of students, researchers, school pupils and volunteers largely reflect existing rules, but there are new provisions on the admission of au pairs which seek to ensure that the host family accepts responsibility for their well-being and that the rights and obligations of the parties concerned are set out in an agreement. In addition, agreements for trainees must include information on working hours, supervision and any remuneration provided.

9.7  Other changes include:

  • a clearer statement of the grounds on which an application for admission should be rejected or an authorisation already given should be withdrawn or may not be renewed;
  • clarification of the rights enjoyed by the different categories of third country nationals admitted under the draft Directive;
  • an extension of the right of students to work from a minimum of 10 to at least 20 hours per week;
  • the introduction of a right for students and researchers to remain in the host Member State after completion of their studies or research for up to 12 months in order to look for work or set up a business (subject to intermediate checks to ensure that they are genuinely seeking employment);
  • a strengthening of the right of family members to accompany third country national researchers and to access the labour market in the host Member State;
  • the inclusion of more favourable provisions on mobility within the EU in order to pursue studies, training or research in a second Member State;
  • the introduction of specific time limits for reaching a decision on applications for admission; and
  • a requirement for Member States to publicise information on entry and residence conditions for third country nationals seeking admission under the Directive, including an indication of the minimum monthly subsistence resources needed, and to designate contact points to exchange information on researchers, trainees or students moving between Member States.

9.8  The Commission's Impact Assessment accompanying the draft Directive (ADD 1) acknowledges that immigration authorities in most Member States consider that the existing legal framework works well and are reluctant to make further changes. By contrast, stakeholders in the field of education, research and youth exchanges express strong support for a strengthening of the framework to improve conditions for admission and associated rights. The Commission believes that changes to existing EU immigration rules are needed to improve Member States' capacity to attract talent from outside the EU:

"Although each Member State could continue to have its own national system of admitting the third country national groups concerned by this proposal, this would not achieve the general objective of increasing the attractiveness of the EU as a destination for talented migrants. Having one set of common admission and residence requirements rather than a fragmented situation with diverging national rules is clearly more efficient and simpler for potential applicants as well as for organisations involved than having to look into and deal with 27 different systems. In addition, the promotion of intra-EU mobility, one of the key objectives of this proposal, requires an EU-wide instrument."[25]

9.9   The Commission also highlights the need to ensure a minimum level of protection, particularly for categories (such as au pairs and trainees) that may be vulnerable to exploitation. It suggests that a transparent legal framework incorporating appropriate safeguards will promote the EU as a centre of excellence for study, research and training and facilitate a genuine transfer of skills.

9.10  The legal base for the draft Directive — Article 79(2) TFEU — forms part of the provisions in Title V of Part Three of the Treaty on the Functioning of the European Union and is subject to the UK's Title V opt-in.

The Government's view

9.11  The Minister for Immigration (Mr Mark Harper) notes that the UK does not participate in the 2004 and 2005 Directives which the Commission proposal would replace and questions whether there is a need for further EU action, adding:

"The Government's general view is that arrangements for the entry and stay of third country economic migrants are best determined at national level in order that they can be adjusted flexibly in response to national assessments of economic need. The Government's freedom to adjust immigration policy in support of its objective of reducing net migration may be undermined by the adoption of measures aimed at delivering a common EU immigration policy."[26]

9.12  The Minister suggests that Member States should be free to determine, on the basis of an assessment of prevailing skill shortages, whether third country nationals should be able to access the labour market in their host Member State after completion of their studies or research. He also considers that the risk of exploitation of vulnerable migrants can be adequately addressed at national level. He acknowledges, however, that,

"it is clearly arguable that arrangements aimed at promoting the intra-EU movement of a particular group of third country nationals would require the adoption of common criteria for their admission from outside the EU. To that extent only, the proposal is compliant with the principle of subsidiarity."[27]

9.13  Turning to the substance of the draft Directive, the Minister describes how it would affect the admission of third country nationals seeking entry to the UK for the purpose of study, training, research and voluntary work under the UK's Points Based System. He suggests that the proposed admission conditions for students fall short of the UK's domestic requirements, which require a third country student to be sponsored by an educational institution licensed by the Home Office. He adds that there is no explicit provision in the draft Directive for applying a language competence test[28] or for refusing an application for admission if the authorities are not satisfied that a third country student genuinely intends to pursue the course of study for which he or she has enrolled.

9.14  Entry requirements for researchers bear some similarity to the sponsorship system in place in the UK, but the Minister suggests that the arrangements would be less flexible and make it difficult to distinguish between third country researchers who are "leaders in their field" (and whose admission may not be tied to a specific sponsoring employer or research organisation) and others who qualify under a sponsored researchers scheme. Moreover, researchers seeking entry to fill a permanent vacancy may be subject to resident labour market test and a wage parity test, neither of which is provided for in the draft Directive. The Minister concludes, therefore, that,

"the Directive does not offer the right balance between flexible arrangements for those researchers who are leaders in their field and labour market protection, where this is needed."[29]

9.15  The Minister notes that the draft Directive would entitle all third country students enrolled at a higher education institution to work for a minimum of 20 hours per week, whereas the UK currently restricts working time for those not studying at degree or post-graduate level to 10 hours. He continues:

"The UK's existing restrictions are an important pillar of the reforms introduced by the Government to address the high levels of abuse previously seen in the student route, where large numbers were using the route to work, not study."[30]

9.16  The introduction of a right for students and researchers to remain in their host Member State for up to 12 months after completion of their studies or research in order to seek employment or establish a business would undo recent reforms to UK immigration rules. The Minister explains:

"The Government recently abolished the Tier 1 (Post-Study) category of the Points Based System, under which third country nationals who completed graduate-level studies in the UK could be granted two years' additional leave with unconditional access to the labour market because significant numbers were using the route to do low-skilled work. Students studying a course of 12 months or more now have 4 months added to their visa beyond their course end date. From April 2013, only those completing PhD studies and selected MBA graduates are able to remain for 12 months beyond their course. There does exist the opportunity for students to remain in the UK where they find skilled employment which meets Tier 2 criteria, or alternatively as a graduate entrepreneur but there is no general provision under which they may remain in order to seek work. This is an important aspect of the reforms that the UK has made to ensure that we continue to attract and retain the brightest and best whilst reducing the use of the student route as a route to low-level work in the UK."[31]

9.17  The Minister says that the equal treatment provisions of the draft Directive might require the UK to extend access to certain social security benefits (such as child benefit and income based Jobseekers' Allowance) for third country researchers in circumstances in which it does not currently do so, adding that the potential cost implications have not yet been quantified.

9.18  He questions whether the provisions on intra-EU mobility between Member States are necessary to make the EU a more attractive destination for third country students, researchers and trainees and says it is not obvious what existing obstacles to movement they are designed to overcome. He continues:

"The Government is not aware that third country nationals that choose to come to the UK for the purpose of research or higher education experience significant problems in travelling to other Member States for purposes connected to their research or studies in the UK."[32]

9.19  Moreover, existing UK immigration arrangements do not distinguish between the admission of third country nationals resident in another EU Member State and those applying from outside the EU. The Minister adds:

"It is, furthermore, the Government's general view that measures which afford third country nationals some degree of entitlement or preference on the basis of their admission to another Member State, in respect of entry to the UK, may tend to undermine the objective of maintaining an effective immigration control and reducing net migration."[33]

9.20  The Minister notes that Member States may charge a proportionate fee for processing applications for admission and questions whether this would allow the UK to set fee levels on a cost-recovery basis or to generate revenue to help fund the UK's immigration system, as is currently the case. He also suggests that the right of appeal conferred by the draft Directive in the event that an application for admission is rejected may be more extensive than that allowed under the UK's Points Based System and would require a change to primary legislation.

9.21  Finally, the Minister notes that the draft Directive is subject to the UK's Title V opt-in and that the Government has until 4 July to decide whether or not to opt in. He continues:

"In deciding whether or not to opt in to this measure, the key considerations are likely to be its implications for the control of immigration, financial affordability, implications for the balance of UK and EU competence and issues of ECJ jurisdiction."[34]


9.22  We note that the UK does not participate in the 2004 and 2005 Directives establishing the conditions of entry and residence for third country nationals wishing to study or carry out post-graduate research within the European Union. The draft Directive would go further, extending the scope of existing EU measures to include broader categories of third country nationals, increasing the amount of part-time work that students may undertake, and introducing a new right for students and researchers to remain for a temporary period in the host Member State after completion of their studies or research in order to seek work.

9.23  While some elements of the draft Directive are broadly in line with the UK's Points Based System, others appear to go against the grain of recent immigration reforms. Although the Minister does not indicate whether the Government will choose to exercise the UK's opt-in, he sets out concerns regarding the justification for EU action and the possible impact of the draft Directive on the Government's objective of reducing net immigration to the UK. The Minister indicates that the Government's consultation on the content of the draft Directive will help to inform its opt-in decision. We therefore ask him to inform us of the outcome of the consultation exercise and of the Government's opt-in decision. Meanwhile, the draft Directive remains under scrutiny.

24   See Council Directive 2004/114/EC on the conditions of admission of third country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, OJ No. L 375, 23.12.2004, p.12 and Council Directive 2005/71/EC on a specific procedure for admitting third country nationals for the purposes of scientific research, OJ No. L 289, 03.11.2005, p.15. Back

25   See p.8 of the Commission's explanatory memorandum accompanying the draft Directive. Back

26   See para 13 of the Minister's Explanatory Memorandum. Back

27   See para 14 of the Minister's Explanatory Memorandum. Back

28   Article 10(1)(c) does, however, allow Member States to require evidence that an applicant has sufficient knowledge of the language of the course which he or she intends to study. Back

29   See para 22 of the Minister's Explanatory Memorandum. Back

30   See para 24 of the Minister's Explanatory Memorandum. Back

31   See para 25 of the Minister's Explanatory Memorandum. Back

32   See para 29 of the Minister's Explanatory Memorandum. Back

33   See para 27 of the Minister's Explanatory Memorandum. Back

34   See para 16 of the Minister's Explanatory Memorandum. Back

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